Ho-hum: another below-guideline sentence reversed by the Eighth Circuit

As documented in this list (which I hope to update soon), the Eighth Circuit is leading the way with reversals of post-Booker below-guideline sentences. Holding to form, the court today in US v. Goody, No. 05-2483 (8th Cir. Mar. 31, 2006) (available here), reversed a below-guideline sentence in a case where the district judge apparently thought he should try to achieve a form of parity between co-defendants. Here is a portion of the circuit court's opinion:

Here, the district court sentenced Mr. Goody to a term of imprisonment that was far outside the range that the sentencing guidelines recommended. We see nothing extraordinary or exceptional about Mr. Goody's situation. While he did accept responsibility for his conduct and provide information to law enforcement, he did not take part in controlled purchases, contribute to the investigation of other drug offenders, or assist the government in any way that endangered himself or his family. Given these circumstances, we think that the sentence is presumptively unreasonable.

In fashioning an appropriate sentence, a district court is allowed to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C. § 3553(a)(6). The district court found that Mr. Goody's involvement in the conspiracy was roughly equivalent to that of another member of the conspiracy, Raymond Gordon, who received a 72-month sentence, and the court used this finding to justify giving Mr. Goody the same sentence. We discern a number of relevant differences between Mr. Gordon's and Mr. Goody's circumstances..... Given the disparities in the quantity of drugs that each man was charged with, their relative levels of cooperation and acceptance of responsibility, and their varying contributions to the conspiracy, it was error for the district court to find that Mr. Gordon and Mr. Goody's circumstances were so similar that the interests of justice required them to receive identical sentences.

We decline Mr. Goody's invitation to consider statistics that indicate that the national average sentence for drug trafficking is 80 months. That figure was computed by using sentences for trafficking in all illicit drugs, and from the data that Mr. Goody presents, we are unable to conclude that his sentence exceeds that typically given for trafficking in methamphetamine.

Fascinating Washington decision on the death penalty

As this AP article from Washington details, yesterday a "strongly divided state Supreme Court upheld the death penalty for a man who fatally stabbed his wife and her two daughters, with dissenting justices calling the state's capital punishment system flawed, arbitrary and irrational." As the article further explains, the "5-4 ruling largely hinged on Dayva Cross' argument that he should not be executed while the state's most prolific murderer, Green River Killer Gary Ridgway, spends his life in prison."

The opinions in State v. Cross, No. 71267-1 (Wash. Mar. 30, 2006), are fascinating. (The majority opinion is here, the dissent here.) Additional effective local press coverage of the ruling is available here and here and here. This opening passage from the dissenting opinion provides a flavor of the debate:

Properly recognizing and analyzing what has happened in the administration of capital cases in this state inevitably leads to the conclusion that the sentence of death in this case, and generally, is disproportionate to the sentences imposed in similar cases. Contrary to what we had expected to find when we established an analytical framework to conduct our statutory review, that the worst of the worst offenders would be subject to the death penalty, what has happened is the worst offenders escape death. When Gary Ridgway, the worst mass murderer in this state's history, escapes the death penalty, serious flaws become apparent. The Ridgway case does not "stand alone," as characterized by the majority, but instead is symptomatic of a system where all mass murderers have, to date, escaped the death penalty.

Alabama legislature approves voluntary guidelines

As detailed in this article, after a very long reform process, the "Alabama Legislature gave final approval Thursday to three bills supported by Gov. Bob Riley to reform Alabama's sentencing procedures and help ease overcrowding in state prisons." Specifically, the "key bill in the package would provide judges with a voluntary list of recommended sentences for various crimes." I found this passage in the article especially interesting:

The sponsor of the legislation, Rep. Marcel Black, D-Tuscumbia, said the purpose of the bill setting voluntary sentencing guidelines was so that a person convicted of committing a crime in one part of the state will receive a similar punishment as a person convicted of the same crime in a different area. But Black said judges will still have the option to give a lenient sentence or a harsher sentence when needed. "Every theft case is not the same. Every murder case is not the same," Black said.

Perhaps we might encourage state representative Black to take a meeting with federal representative Sensenbrenner (who apparently does not quite see the virtues of judicial discretion).

Blakely plain error in Oregon

The story of Booker plain error in the federal system has been amazing to watch, though slowly but surely the issue has been sorted out (differently) in each circuit. This newspaper article from Oregon serves as a reminder that the states have had their own plain error issues to sort through in Blakely's wake. Reporting on the last of a series of plain error rulings, the article explains that the Oregon Supreme Court has decided "that defendants cannot object to their prison sentences on appeal if judges increased their sentences based on aggravating factors ... if defendants failed to object to them at the time of sentencing." The latest of these decisions came yesterday in State v. Perez, No. S52267 (Ore. Mar. 30, 2006) (available here).

March 30, 2006

Topless guidelines bill in the works from Sensenbrenner

I have now heard from two different sources that House Judiciary Chair James Sensenbrenner intends to introduce a bill mandating topless guidelines, and that there will be a hearing concerning the solution to the post-Booker sentencing problems that he identifies sometime in early May. My impression from the House hearing earlier this month was that most of the witnesses did a powerful job urging Congress to leave Booker alone for now, but apparently Sensenbrenner was unconvinced. Needless to say, this is a story to watch, and the links below provide plenty of background.

A helpful reader pointed me to this press release on the proposed legislation. The ACLU website also has this letter that it sent to the House subcommittee opposing H.R. 5040. Here is how this letter begins:

On behalf of the American Civil Liberties Union, a non-partisan organization with hundreds of thousands of activists and members and 53 affiliates nation-wide, we write to express our concerns about H.R. 5040, the Death Penalty Reform Act of 2006 (DPRA) that will be considered during a hearing in the House Judiciary Crime, Terrorism and Homeland Security Subcommittee on Thursday, March 30. The Death Penalty Reform Act would violate the Eighth Amendment by allowing for the execution of mentally retarded persons and contradict Supreme Court law by making virtually every federal crime that results in death and involves a firearm eligible for the death penalty. We urge you to oppose this legislation because it violates several fundamental constitutional principles.

UPDATE: The hearing and testimony from this hearing is now all linked at this official hearing page. Perhaps the most complete testimony providing background on the pros and cons of the bill comes from the DOJ testimony from Margaret P. Griffey and the defense-oriented testimony from David Bruck. Bruck's testimony begins with a reminder of why this is all much ado about a very small piece of the national death penalty equation:

Federal prosecutions account for a little over one percent of the prisoners currently on death row throughout the nation, and well under one percent of the executions to date. This reflects the fact that, despite many expansions of federal jurisdiction over violent crime in recent decades, the prosecution and punishment of persons who commit murder remains overwhelmingly a state responsibility.

Ninth Circuit affirms above-guideline life sentence

In a thorough opinion, the Ninth Circuit today in US v. Mix, No. 05-10088 (9th Cir. Mar. 30, 2006) (available here), affirmed an above-guideline life sentence in a case involving a defendant who "committed numerous violent acts of sexual and physical assault against his live-in companion." The court in Mix discusses post-Booker sentencing and sentence review at length, and here is how it sums up its legal discussion:

In summary, it is both important and legally necessary under 18 U.S.C. § 3553(a) and under Booker that the district court conduct parallel analyses — first employing the Guidelines, and then considering non-guideline sentencing factors under § 3553(a). In many instances, there will be no non-Guidelines issues in sentencing; and, in those cases, review by this court will be de novo for accuracy as regards the calculation of Guidelines ranges. In other cases, such as this one, substantial questions may arise as to whether or not the Guidelines adequately take account of the § 3553(a) sentencing factors. Where, as here, the district court determines that the Guidelines do not adequately take account of § 3553(a) sentencing factors, the district court, may, in furtherance of Booker, impose a sentence outside and apart from the Guidelines. Because the scope of review differs depending upon the sentencing methodology employed by the district court, it is important that district courts clearly and carefully differentiate between the findings and conclusions as regards the application of the Guidelines, and the findings and conclusions as regards the application of non-Guidelines factors pursuant to 18 U.S.C. § 3553(a). Here, we are able to discern the sentencing methodology that the district court ultimately applied, and why it did so. In light of the non-Guidelines, § 3553(a)(1) and (2) analysis performed by the district court, we conclude that the sentence imposed on Mr. Mix was reasonable.

Interestingly, though the Ninth Circuit has not formally addressed whether a within-guideline sentence gets a presumption of reasonableness, this account of post-Booker review seems to treat the guidelines as still the center of the post-Booker universe. In particular, I find the assertion that "[i]n many instances, there will be no non-Guidelines issues in sentencing" to be suspect and potentially harmful in light of my belief that Booker requires a less guideline-centric approach to federal sentencing.

Latest lethal injection litigation news

As detailed in news reports here and here, a "federal judge will conduct a fact-finding tour of San Quentin's execution chamber Thursday as he assembles evidence to decide a constitutional challenge to California's lethal injection procedures." As one article further details, "U.S. District Judge Jeremy Fogel on Wednesday agreed to allow media representatives to accompany him on the prison trip in response to First Amendment arguments" raised by three newspapers.

March 29, 2006

Amazing taxonomy of legal blogs

As I have noted before, I am a bit obsessed with meta-blogging issues, particularly the power, potential and pitfalls of blogging as a medium for lawyers and law professors. Feeding this obsession in various ways is Ian Best who at his blog 3L Epiphany has now completed this amazing taxonomy of legal blogs.

Examining an issue that frequently arises in death penalty cases, the Supreme Court today heard arguments in the consolidated cases of Sanchez-Llamas v. Oregon and Bustillo v. Johnson concerning the meaning and enforceability of the Vienna Convention's promise of consular access for foreign defendants. Lyle Denniston has a fascinating account of the argument here at SCOTUSblog. This AP report on the argument is also a good read. The only prediction I am prepared to make is that we won't likely get a decision in these cases until the very end of the term.

Abramoff gets guideline minimum

As discussed in more detail in this earlier post, disgraced lobbyist Jack Abramoff was sentenced in federal court today in Florida for his role in a fraud involving a casino fleet. Abramoff's lawyers produced this remarkable 60-page memorandum in aid of sentencing to ask for a sentence at the bottom of the stipulated guidelines range (70 months). This AP story details that Abramoff received this guideline minimum sentence.

A new challenge for drug courts

While the drug court movement seem to continue to grow and gather momentum, this local story from Pennslvania spotlights a challenge these programs can face:

The choice seems like a no-brainer: Go to jail or go through a drug treatment program that could turn your life around. But more often than not, people who are eligible for Luzerne County's new drug court choose jail.

"Our biggest problem has been that they don't want us, not that we don't want them," Carol Nicholas told fellow members of the county"s Drug and Alcohol Study Commission on Tuesday. "We're finding that clients that we're interviewing who have good criteria for drug court admission do not want to jump through those hoops," said Nicholas, a Catholic Social Services project director who helps oversee the drug court. Nicholas offered one man's reaction: "He said, 'I'd rather sit in jail. I got my teeth fixed last time.'"

The hoops? Participants must spend anywhere from 12 to 18 months proving that they can stay drug-free, complete intense drug treatment and become responsible citizens with full-time jobs, high school diplomas and adequate housing. Participants must be over 18 and have committed only non-violent crimes as a result of their drug or alcohol addictions. They must plead guilty, but the charges will be dismissed if they successfully graduate from the program. Those who have committed serious or aggravated crimes of violence, drug trafficking, sexual abuse and sexual assault are barred from drug court....

House Judiciary Subcommittee hearing on death penalty

A helpful reader reminded me that tomorrow at 11:30 am the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security has this scheduled hearing on a bill titled the "Death Penalty Reform Act of 2006." As of this writing, there is little information about this bill and tomorrow's hearing on the House Judiciary Committee website, and I can find little else about what might be in the works here. In-the-know readers should use the comments or e-mail to report if something significant might be in the works here.

UPDATE: The House Judiciary Committee website now lists these witnesses for the hearing:

Margaret P. Griffey, Chief of the Capital Case Unit, Criminal Division, United States Department of Justice

Gearing up for Jack Abramoff's sentencing

As detailed in news stories here and here and at the WSJ Law Blog, "[r]abbis, military officials, a congressman, and an NHL referee are among the more than 260 people who have written letters to the federal judge in Florida who will sentence Jack Abramoff on Wednesday." But while the media is most intrigued by this outpouring of support, sentencing insiders should focus their attention on this remarkable 60-page memorandum in aid of sentencing filed by Abrahoff's lawyers.

TalkLeft has terrific coverage of all these doings in this post, which explains that Abramoff's lawyers ask for a sentence at the bottom of the stipulated guidelines range (70 months), although a subsequent sentencing reduction is expected after Abramoff's cooperation is completed. TalkLeft calls the defense's sentencing memo an example of "great, creative lawyering," and I heartily concur in this assessment. Here is the memo's conclusion:

For the foregoing reasons, Mr. Abramoff asks the Court to sentence him at the lowest point of the Guideline range that has been stipulated to and recommend by the government. He asks the Court to impose this sentence in recognition of his extraordinary history of good works for his community and the country, and the extraordinary impact his incarceration will have on his wife and five teenage children. He asks for that sentence be in keeping with all the factors Courts are now required to consider, and his extraordinary efforts to accept responsibility for his actions and cooperate to facilitate law enforcement's efforts.

UPDATE: More details about Abramoff's fraud and the likely developments in his case are available in this news story from lunchtime on Wednesday.

Massive Booker break for doctors

As detailed in news reports here and here, a "federal judge on Monday slashed prison sentences for three former doctors from a now-closed Myrtle Beach pain clinic where federal prosecutors say drugs were illegally prescribed." The sentences for two of these doctors were reduced from roughly 20 years to only two years, marking the largest Booker breaks I have seen.

The press accounts indicate the district judge justified the reduced sentenced by saying the doctors were different from most drug dealers and were no threat to society after having lost their medical licences. If prosecutors pursue an appeal, the size of the reductions should make this case an interesting test for the limits of Booker discretion.

The anti-snitching "campaign"

Wednesday's USA Today has this extended article about the anti-snitching "campaign" that seems to have become a nationwide issue. Here is a taste:

Omerta, the Mafia's blood oath of silence, has been broken by turncoat after turncoat. But the call to stop snitching — on other folks in the 'hood — is getting louder. Is it an attempt by drug dealers and gangsters to intimidate witnesses? Is it a legitimate protest against law enforcers' over-reliance on self-serving criminal informers? Or is it bigger than that? ...

Alexandra Natapoff, a professor at Loyola Law School in Los Angeles, says that, based on federal statistics, one of every four black men from 20 to 29 is behind bars, on probation or on parole, and under pressure to snitch. She estimates one in 12 of all black men in the highest-crime neighborhoods are snitching. She says informers strain the social fabric of poor minority neighborhoods, where as many as half the young men have been arrested....

Hence a backlash — "stop snitching." The slogan appeared in Baltimore about two years ago as the title of an underground DVD featuring threatening, gun-wielding drug dealers... The black community is divided. Rapper Chuck D of Public Enemy has blasted the Stop Snitching campaign on the hip-hop group's website....

Whatever its intent, the Stop Snitching movement has galvanized officials already apoplectic about witness reluctance and witness intimidation.... Stop Snitching T-shirts have been banned from a number of courthouses. Boston Mayor Thomas Menino, whose city recorded the most homicides in a decade last year, threatened to send police into stores to pull them off the shelves. Following the furor over the Stop Snitchin' DVD, Maryland raised witness intimidation from a misdemeanor to a felony, and Baltimore police made a tape of their own, Keep Talking. "People have to snitch," says Peter Moskos, a former Baltimore street cop. "That's how criminals get caught."

South Carolina bill proposes death for repeat child molesters

As discussed in this recent post, a bill making repeat child molesters eligible for the death penalty has been moving forward in Oklahoma. And now, as detailed in this AP story and this additional presss account, a similar bill is advancing in South Carolina. Here are some details:

The South Carolina Senate agreed Tuesday that twice-convicted child molesters should be eligible for the death penalty, setting aside arguments the move might be unconstitutional.... The proposal was approved as part of a larger bill that sets minimum sentences and lifetime electronic monitoring for some sex offenders. It allows prosecutors to seek the death penalty for sex offenders who are convicted twice of raping a child younger than 11....

Such criminals "don't deserve to be on the face of this earth," said Sen. Jake Knotts, R-West Columbia, the chief sponsor of the bill dubbed the Sex Offender Accountability and Protection of Minors Act. "In a lot of cases, death isn't good enough for them," Knotts said. Attorney General Henry McMaster ... said he believes South Carolina's proposed law would be found constitutional, and that he would be proud to argue that case.

Federal officials made a temporary, emergency change to the federal sentencing guidelines Monday to stiffen penalties for steroids-related offenses. The change by the U.S. Sentencing Commission means abusers of anabolic steroids will face the same sentences as those who abuse other controlled legal substances, categorized by the federal government as Schedule III drugs.

The commission's amendment to provide harsher penalties for steroids use and distribution was prompted by a directive from Congress.... The amendment to the sentencing guidelines also adds sentencing enhancements for athletes using masking agents to hide their steroid use, for coaches who pressure athletes into experimenting with the drug and for individuals who distribute to athletes.

The tougher guidelines would have made the sentences for those convicted in the Bay Area Laboratory Co-Operative scandal about five times longer, according to Luke Macaulay, spokesman for the U.S. attorney's office for the Northern District of California. BALCO owner Victor Conte, for example, would have been sentenced to 37 to 46 months instead of the eight months that he served after pleading guilty to possession and conspiracy to distribute steroids in 2005, Macaulay said.

These new guidelines are a fittingly sad way for the sentencing world to gear up for opening day. I wonder if this fellow blogger is up on this sentencing news.

March 28, 2006

More on push to reform California's 3-strikes law

Providing continuing coverage of an important reform movement in California, this AP article details that a proposal for revising California's tough 3-strikes law has a surprising advocate:

The lead voice urging voters to reconsider California's tough "three strikes" sentencing law belongs to an unlikely advocate for change: one of the state's top lawmen. Los Angeles County District Attorney Steve Cooley is pushing for a ballot measure he believes would make prison terms more just by reforming guidelines voters passed amid an early 1990s crime wave.

Cooley says his motivation is twofold. He wants the punishment to fit the crime and believes current guidelines — the toughest in the nation — can be too harsh. He also worries that Californians eventually will overhaul sentencing law, and he wants reform done right. "We're fixing three strikes in order to save it," says the Republican prosecutor who leads the country's largest district attorney's office.

One result could be that hundreds, perhaps thousands, of inmates would be sentenced to shorter terms or set free.

Editorial lauding post-Booker sentencing system

Sunday's Milwaukee Journal Sentinel included this effective editorial about federal sentencing, which endorsed current post-Booker realities. Here is a snippet:

Early last year, the nation's top court changed how federal judges set the sentences they issued. Before the Supreme Court decided United States vs. Booker, judges had to fit sentences within specific limits. Afterward, they could treat those limits as suggestions, not mandates. The switch served the cause of justice....

The old system straitjacketed judges too much, such as Utah's U.S. District Judge Paul Cassell, known as a hard-line conservative. He lamented from the bench that he had no choice but to put a first-time offender in prison for 55 years for dealing marijuana. Justice demands that judges be allowed to exercise discretion. Otherwise, you may as well replace him or her with a computer program.

The rationale behind mandatory sentencing is that it keeps punishment uniform. But it only seems to do so. It simply transfers discretion from the judge to the prosecutor, who exercises it by choosing which charges to bring or whether to bring any at all. Prosecutors use the draconian sentences as a club to extract plea bargains. The system allows U.S. attorneys to dish out leniency in exchange for cooperation. Thus, suspects with much information to trade can get light sentences. One consequence is that drug ringleaders have gotten much shorter sentences than defendants only tangentially connected to the ring, such as a leader's girlfriend, since the latter has little information to swap. Giving the judge discretion can prevent such injustices.

In the criminal justice system, defendants in federal court can be convicted one of two ways -- by pleading guilty or after a trial. Those who choose to admit their guilt are often "rewarded" with lesser sentences. Those who choose to take advantage of their Constitutional right to trials are often "penalized" with harsher sentences.

Prosecutors argue that guilty pleas are essential, and without them the system would be crippled by thousands of cases backlogged for trial. Further, they think that defendants who take responsibility for their crimes deserve to benefit.

Defense attorneys and some academics, though, argue that the system is so skewed that most clients are forced to accept pleas, knowing that if they take their chances at trial and lose, they will face sentences that are at least 25 percent higher.

Robert Jones pleaded guilty to possession of child pornography in violation of 18 U.S.C § 2252A(a)(5)(B). At sentencing, which occurred after the United States Supreme Court decided United States v. Booker, the district court sentenced Jones to the statutory maximum prison term of 120 months, which was beyond the 46-to-57 month range calculated under the Guidelines. Jones challenges his sentence on three grounds, claiming, for the first time on appeal, that (1) in violation of Federal Rule of Criminal Procedure 32(h), he did not receive notice before sentencing that an upward departure was contemplated or notice of the grounds for that departure, (2) the district court based its decision to depart upwardly on impermissible factors, and (3) the sentence is unreasonable. Because we conclude that plain error has not been shown, we affirm Jones's sentence.

March 26, 2006

Pondering the re-argument in Kansas v. Marsh

Last month in this post, I expressed surprise that the Supreme Court did not order re-argument in any of the capital cases that were first argued before Justice Alito's arrival. However, as detailed by SCOTUSblog and How Appealing, the Court on Friday did decide it needed re-argument in Kansas v. Marsh(posts here and here provide some background ). This AP story about the reargument order, as well as reactions from folks in Kansas.

Because I am not an expert on the internal deliberations of the Court, I cannot provide any educated speculation as to why the Court has only now decided it needs Justice Alito's help to resolve this case. Perhaps readers might suggest theories about what's happened in Marsh in the comments.